With President Obama's recent round of interviews, one item of health-care reform has been front and center: the health insurance mandate. In an interview with ABC's George Stephanopoulos Sunday, the president became slightly testy arguing that requiring citizens to purchase health insurance was not a "tax" (Stephanopoulos suggested it was). This has sparked a round of debate on editorial pages and in the blogosphere that revolve around a handful of questions: is a health insurance mandate unconstitutional? Is it, in fact, a tax? And is it really a good idea?
- Very Simple: It's a Tax, and It's a Bad Idea The Washington Times editorial board simply compared language: "One of the main health care bills under consideration calls the proposal a 'tax.'" This tax is punitive, they noted, and President Obama disapproved of it last year in a primary debate with Hillary Clinton. "There would ... be people potentially," he argued at the time, "who are not covered and are actually hurt if they have a mandate imposed on them."
- Let's Go Into Details ... It's Still a Tax The Business Insider's Joe Weisenthal didn't think the mandate a bad idea, but for him, the classification was clear:
It's true, we don't typically consider mandatory car insurance a tax--the reason we make it mandatory is ... to prevent insured drivers from getting screwed when a non-insured driver careens into them. So, you wanna use public roads and get a license? Then get yourself some insurance.
Obama pretends that the analogy can be extended here ... with the implication that if you're uninsured and have to go to the emergency room, the rest of us get screwed because we end up paying it. And this narrow example is similar to the car insurance ... But come on, that's not the real reason he wants everyone insured. He wants all healthy people insured to diversify the risk pool, and make the product (insurance) affordable to the ill or those somehow locked out of it. That is socialization and that is a tax.
- Tax or No, It's Unconstitutional Back in August, David Rivkin Jr. and Lee Casey argued in the Washington Post that forcing citizens to buy health insurance "would not pass muster even under the
most aggressive" interpretations of the Constitution's famous, all-purpose commerce clause. The insurance mandate, they continued, would not be regulating
activities "quintessentially economic," the precedent set in the Gonzales
v. Raich case involving the regulation of home-grown, personal-use marijuana. Nor would regulating through taxation solve the problem: "Congress cannot use its power to tax solely as a means of
controlling conduct that it could not otherwise reach through ... any other constitutional provision." Andrew Napolitano added last week in the Wall Street Journal that cases like United States v. Lopez, "invalidat[ing] a congressional ban on guns within 1,000 feet of public schools," displayed a precedent unfavorable to the Obama plan.
- It's Only Unconstitutional If You're a Former Bush Official In a Politico Arena discussion, law professor Timothy Jost noted Rivkin's and Casey's former Bush administration positions and said their argument was "not ... taken seriously by constitutional scholars." Citing a 1944 Supreme Court decision clearly recognizing insurance regulation as falling under the commerce clause, he contended that the only problem with the insurance mandate was the "absence of a clear precedent" for requiring insurance purchase. This did not strike him as an insurmountable legal barrier. He added that Napolitano's United States v. Lopez example dated from the Rhenquist days of the Supreme Court, and that with that justice's departure the court had not continued this trend.
- Tax or No, Unconstitutional or No, It Won't Work, asserted Jamie Court in the Washington Post. "In California, the car capital of America, the injustice of mandatory
insurance laws sparked one of the great voter revolts of modern history--and that still didn't solve the uninsured motorist problem." He outlined a series of steps that might mitigate the problem of mandatory insurance, but remained unenthusiastic about the proposal.